Poi v The Queen

[2005] NZCA 138

IN THE COURT OF APPEAL OF NEW ZEALAND

CA39/05

THE QUEEN

v

SHANNON MARIE ROBERTA POI

Hearing:25 May 2005

Court:Robertson, Williams and Salmon JJ

Counsel:D J Sharp for Appellant

E M Thomas for Crown

Judgment:2 June 2005 

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Williams J)

Introduction

[1]       The appellant, Ms Poi, was charged in the District Court that on 27 January 2004 at Gisborne she committed aggravated burglary – unauthorised entry armed with a bottle to commit a crime – and wounding the occupant of the house with intent to injure her.  She pleaded guilty to both charges following a sentencing indication hearing on 8 December 2004.  On 25 January 2005 she was sentenced to concurrent terms of four years imprisonment on each charge with a minimum term under the Sentencing Act 2002 s 86 of two-and-a-half years imprisonment.

[2]       She now appeals to this Court against the sentence – principally the minimum period order – on the grounds it was manifestly excessive.

[3]       At the hearing before us Ms Poi’s counsel, Mr Sharp, expressly disavowed any reliance on the fact that the possibility of a minimum period of imprisonment was not mentioned at the sentencing indication hearing.  He accepted that the Crown’s submissions, which were served on him some days before sentencing in the District Court, sought imposition of a minimum period and he did not object at sentencing to this factor but argued it should not apply.

Facts

[4]       Following drinking, smoking cannabis and taking methamphetamine throughout the day of the offences, Ms Poi, her partner and a friend went to the complainant’s home late in the evening.  Though she knew of the complainant, Ms Poi had never met her.  The party forced their way into the complainant’s property.  She walked into the hallway.  Ms Poi, who was holding a beer bottle from which she had been drinking, hit the complainant in the face with it.  It smashed and the complainant suffered a number of cuts.

[5]       It was in contention throughout the matter whether the complainant tried to punch Ms Poi before being hit with the bottle and whether there was more than one blow from the bottle.  The complainant in her statement said she was only struck once but given that she suffered separate cuts to the face, chest and a deep cut to the neck which narrowly missed her carotid artery, there is considerable support for the view of the Judge who sentenced Ms Poi that it seems highly likely the complainant was struck several times.

[6]       An aggravating feature was that the complainant’s three small children witnessed the assault on their mother, though Ms Poi denied seeing them at the time.

Sentencing

[7]       The Judge who sentenced Ms Poi concluded his review of the facts by saying it was “very difficult to accept” that only one blow had been struck with the bottle.  The aggravating features included forced nocturnal entry into the complainant’s house with a man who assaulted her – and was separately sentenced – and what the Judge described as a “deplorable history of violent offending and indeed of similar assaults upon young women”.  Ms Poi showed little remorse for her offending.  She had been assessed at being at a high risk of re-offending.  The only mitigating factor available was her plea but even that, the Judge noted, was only after depositions and the sentence indication.

[8]       The Judge selected a starting point of six years imprisonment but he reduced that term by one-third for the plea.

[9]       The Judge considered the Crown application for a minimum period of imprisonment, assessed the appropriate factors under the Sentencing Act 2002 s 86 in its form before amendment, and concluded :

[13]The real issue is whether a sentence that effectively can be terminated by a parole at one third is sufficient punishment and sufficient denunciation of this conduct given the overall circumstances, and in particular your history of offending.  In that regard I am concerned about your history of violent offending particularly against other young women.  The fact that you have previously been convicted of attacking a young woman with a beer bottle in not dissimilar, although not so grave circumstances, in the sense that at least it was not done in the context of barging into the person’s house in the middle of the night.  That is a serious aggravating factor and of course is supported by a separate charge of aggravated burglary.

[14]But looking at all of those things in totality, and looking at the sentences that have been imposed upon you in the past, they plainly have not been sufficient to deter you from further and even worse offending.  I think it would be an affront to the community not to recognise that by imposing a sentence that properly reflects the seriousness of what you have done.  These were disfiguring injuries, gratuitously and savagely inflicted in a quite random and brutal attack on this young woman in her own home at night and in the presence of her children.  You have expressed at the most, the most qualified remorse, and none for your actions at all and I think those factors need to be recognised.

Submissions

[10]     In comprehensive submissions, Mr Sharp, in his review of appropriate authority, relied particularly on R v Hanna (CA201/04 7 October 2004).  In Hanna a shopkeeper was ambushed by two intruders as he reached his home.  Money was demanded.  The shopkeeper’s wife intervened.  She was assaulted and threatened.  Though the domestic safe could not be opened, the intruders were given money and after an attempt to remove her rings the shopkeeper and his wife were left bound and gagged.  The Solicitor-General successfully sought leave to appeal against the refusal to order a minimum period of imprisonment.  Mr Hanna had been sentenced to seven years imprisonment for aggravated robbery and concurrent sentences of three years imprisonment on two kidnapping counts.  A minimum period of two-thirds of the sentence was thought to be appropriate but, given that it was a Solicitor-General’s appeal, the minimum term imposed was three-and-a-half years.

[11]     This Court found the offending outside the ordinary range of aggravated robbery, observing :

[15] The comparison to be made between the particular features of an offence and the ordinary range of features generally implicit in such offending is to be made across the general range of that offending and not confined simply within the particular category of offending.  Thus, in making the relevant comparison in relation to the offence of aggravated robbery, that comparison must be across the ordinary range of aggravated robberies and not, as the Judge appears to have done in this case, within the particular category identified in R v Mako [2000] 2 NZLR 170 as follows:

Forced entry to premises at night by a number of offenders seeking money, drugs or other property, with violence against victims, where weapons are brandished would require a starting point of seven years or more even if no serious injuries are inflicted. Where a private house is entered the starting point would be increased under the home invasion provisions to around ten years

[12]     Mr Sharp drew attention to the considerable difference between the longest term of imprisonment to which Ms Poi had previously been sentenced – two years – and that imposed in the present case and submitted the four year term was sufficient denunciation without the addition of the minimum period, particularly having regard to cases such as Hanna.  However, he accepted that Ms Poi’s offending must properly be seen as within the second category in R v Hereora [1986] 2 NZLR 164, 170.

[13]     For the Crown, Mr Thomas submitted the Judge correctly approached all aspects of sentencing.  Factors placing Ms Poi’s offending outside the ordinary range of the offences with which she was charged included the extent and seriousness of the injuries, the gratuitous attack in the complainant’s own home and in the presence of her children coupled with Ms Poi’s previous history and lack of remorse.  He relied on this Court’s observations as to the appropriate minimum period in Hanna.  He also relied on the Judge’s observation that previous sentences had failed to deter the appellant from reoffending.  That justified the minimum period order though he accepted that the comment that Ms Poi’s offending was an “affront to the community” did not reflect the correct statutory test.

Discussion

[14]     There can be no doubt a sentencing starting point of six years for Ms Poi’s offending was well within range.  This was offending plainly within the second category in Hereora involving forced entry into a dwellinghouse occupied by a stranger at night by a number of persons, one of whom was armed with a bottle, and the infliction of severe injury leaving serious scarring.  Indeed, the contrary was not strongly advanced by Mr Sharp.

[15]     The real question is whether the offending was sufficiently serious to take the charges Ms Poi faced out of the ordinary range of offending of that kind. 

[16]     In that regard, it is first to be noted the appellant was charged only with wounding the complainant with intent to injure her under the Crimes Act 1961 s 188(2) whereas more serious offences under s 188 may have been available.  The fact Ms Poi faced almost the least serious offence under s 188 means it was correspondingly easier for the Crown to argue the circumstances of the actual offence took it outside the ordinary range of offending for wounding.

[17]     Even so, the question must be whether, in terms of R v Brown [2002] 3 NZLR 670 paras [23] and [28] Ms Poi’s possible release after one-third of her sentence would represent such little denunciation, punishment and deterrence as to be an insufficient sentence in the eyes of the community.

[18]     We have no doubt Ms Poi’s offending clearly crossed the threshold for a minimum period of imprisonment to be imposed and that the term imposed was not  manifestly excessive.

[19]     This was forced entry by a party of persons into a dwellinghouse at night, the dwellinghouse being occupied by a woman Ms Poi knew but to whom she was not known.  A bottle was used as a weapon.  There were almost certainly a number of blows struck.  All were serious.  One narrowly missed the carotid artery.  The complainant’s children were present.  Ms Poi expressed no remorse.

[20]     In addition to those factors, the Judge was right to have regard to Ms Poi’s list of previous convictions.  Over the period since 1997 she has been convicted of about 75 offences including a number involving violence.  The list included two offences of injuring with intent and a further offence of kidnapping committed in 1999 on which she was sentenced to one year and two years imprisonment respectively, those sentences being served cumulatively.  She has also been imprisoned on a number of other occasions for offences of violence and dishonesty. 

[21]     There was accordingly ample support for the Judge’s view that previous sentences have failed to effect Ms Poi’s reform.  The potential for her to be paroled after one-third of her sentence was accordingly insufficient to mark the violence of her offending or to punish and denounce what she did.

[22]     The appeal is accordingly dismissed.

Solicitors:
Burnard Bull, Gisborne, for Appellant
Crown Law Office, Wellington